3.5.1 Approving and ratifying the constitution

The constitutional referendum is but one form of the referendum; others include referendums on secession or merger with an existing state, legislation, treaties, and policies. The focus here is on the constitutional referendum on fundamental changes to an existing constitution, or the adoption of a new constitution.

Two important elements in designing a constitution-making process are the institutions and rules for making decisions on the constitution. Often the choice is dictated by political and legal traditions. An obvious distinction is between unitary and federal states; the constitution of a federation affects more than the federal government, necessitating a more complex set of institutions and rules for voting. In many cases, the deliberative body that made the draft, usually the legislature or the constituent assembly, also adopts and ratifies it. Britain and some former colonies dominated by the notion of parliamentary sovereignty leave constitutional issues to the legislature. In civil law systems, there is a preference for a referendum (though there are a number of examples of parliament making the final decision). In states under some kind of international trusteeship or custody, there is likely to be a constituent assembly or a referendum (such as in Iraq [2006]), unless there have been recent general elections to the body making the constitution (as in Cambodia and Namibia).

The purpose of this section is to examine the necessity and desirability of a referendum for the adoption of the constitution. Rules for decision-making by constitutional commissions, legislatures, and constituent assemblies have been discussed in previous sections. As a rule, a referendum ratifies a decision made by another body, usually a political body, the legislature, or the constituent assembly. (An exception is the current Somali process, in which the draftconstitution is required to be submitted directly from a constitutional commission to the people under the Somalia Transitional Charter—though this is unlikely to be feasible in the current circumstances in Somalia.) In principle it is desirable that the draft constitution should be considered and approved by a more deliberative body prior to the referendum, since the referendum does not normally provide a proper opportunity for the canvassing of views on issues in the constitution, or the accommodation of different perspectives. And the only choice in the referendum is “Yes” or “No,” not a nuanced answer.

Uses of referendum

It is possible to use the referendum to resolve a particular controversy about the design of the process or a substantive issue. It has been used, particularly in Latin America, to ask the people if they would prefer a constituent assembly to draft the constitution, or to secure the mandate for negotiations on a new constitutional order (as in the referendum of the white community in South Africa), on the mandate of the constitution-making body (as in France in 1957), or on secession and independence (as in Saint Kitts and Nevis in 1998; Timor-Leste in 1999; Bougainville, Eritrea, Montenegro, New Caledonia, South Sudan in 2006; it is also a possibility for Canada, in relation to Quebec, as result of a Canadian Supreme Court decision on the subject). A similar referendum in Kurdistan in 2005 on independence was held by the regional authorities, to secure, as expected, a big “Yes” vote to strengthen its negotiating position on autonomy with respect to the rest of Iraq. The referendum to settle a contentious issue is best exemplified by the decision of the Special Majlis (constituent assembly) in the Maldives to adjourn its proceedings to refer the major contentious issue—the system of government—for resolution by the people. Both the Uganda [1995] and Kenya [2005] processes provided for similar possibilities, but these were not taken up, either to put pressure on the constitution- making body to reach consensus, or because they were daunted by the complexity of the issues. But Uganda used the referendum five years after the constitution to settle the outstanding question of whether the country should move to a multiparty system. Decisions on the retention or abolition of monarchy have been made by referendum in several countries (such as Greece, Italy, and colonial Rwanda).

Our principal concern, however, is with the referendum for a new constitution or major amendments, for at least two reasons. First, for the purposes of constitution-making, the referendum makes people a key institution, whose approval is necessary to bring the draft into force. This role of the people flows from the sovereignty vested in them, and is a manifestation of the fundamental component of the principle of self-determination. Second, for certain constitutional changes, the direct participation of the people in the referendum is seen as a necessary condition for the validity of constitutional change. Courts in India and Kenya have held that fundamental constitutional changes cannot be made by the ordinary process of constitutional amendments, especially when undertaken by the legislature. And, a fortiori, a constitution cannot be replaced by the ordinary amendment process. These defects can be perhaps be cured if an assembly has been elected democratically for the express purpose of amending fundamental features or of bringing in a new constitution. A referendum, it follows, would put the attempt beyond doubt.

Prevalence of referendum

Professor Markku Suksi, a foremost authority on the referendum, notes that more than half of the constitution-making processes from 1998 through 2007 used the referendum to decide on new constitutional text. But at the level of states (ignoring subnational entities), new constitutions, or constitutions that seem to be the result of a more specific constitution-making process rather than a regular amendment process, have been decided by means of the referendum only in some fourteen cases (Albania [1998], Sudan [1998], Venezuela [1999], Qatar [2003], Rwanda [2003], Cyprus [2004], Burundi [2005], Iraq [2005], Kenya [2005; 2010], Democratic Republic of the Congo [2006], Serbia [2006], Kyrgyzstan [2007], and Thailand [2007]). Suksi also estimates that at least half of the world’s constitutions require a referendum for constitutional change (Suksi 2008).

Status of referendum

Apart from the subject matter, referendums can be categorized by their status. A referendum may be mandatory, required by the constitution or some other law. In these cases the results of the referendum are usually binding. A referendum may be advisory, to enable the government or parliament to gauge public opinion. In countries such as Britain in which referendums are neither mandatory nor binding, there may nonetheless exist an unwritten convention that certain important constitutional changes will be put to a referendum and that the result will be respected. The Kenyan referendum [2005] was probably advisory (if positive, the actual change to the constitution would have required parliamentary approval), but the rejection effectively killed the constitution-making process.

Some countries have elaborate rules on who may call a referendum, and when; a referendum can have a constructive or a disruptive influence on politics, and can certainly be used in a partisan way to undermine regular political institutions and processes. Sometimes it is necessary to get the permission of the courts to hold a referendum (as in Hungary). A court in Zimbabwe has held that the president can call a referendum at any time (and submit any draft constitution). Since only the legislature has any constitutional amendment power, the referendum can only be advisory. (As it happens, the Zimbabwe draft was rejected and the president made no attempt to take it or an amended version to the legislature.) For the purposes of constitutional amendment or replacement, the rules are normally relatively straightforward, and compulsory.

Rules regarding voting

How are the results of the referendum computed? On this critical matter, there is no single answer. In most systems a simple majority of those voting suffices (but in the Republic of the Congo, an absolute majority of those voting is required, and in Lithuania some provisions, touching on the character of the state, require a three-quarters majority). Some laws prescribe that a minimum percentage of registered voters must have voted, and many referendums have been lost even though the majority of those who voted said “Yes,” because of low turnout. (Ireland and Italy are among the countries that require a minimum turnout.) A few, particularly federations, require that apart from an overall majority, there must be a significant spread of support throughout the country. This rule was applied in the referendum in Kenya [2010], requiring an overall majority of those voting and 25 percent support in five out of eight provinces. (Kenyan provinces have ethnic dimensions.) In the Iraqi referendum of 2005, the requirement was both a majority of “Yes” votes nationwide and that not more than two governorates (out of eighteen) have a “No” vote by two-thirds or more of the registered voters. (This figure was chosen rather than the original and less onerous requirement of two-thirds of the actual voters, the change giving a veto to small, but compact, groups—a rule originally meant to help Kurds in their negotiations for autonomy, but which nearly enabled the Sunnis to torpedo the constitution.)

Debating referendums

With the above framework for referendums, the question is what role should there be for the referendum? We need to ask questions about such issues as: how important is it to give the final word on constitutional issues to the people; about the place of the referendum in what is often a long and complex process covering a variety of issues, some controversial; the nature and fairness of the referendum campaign and process; the fairness of the referendum; and its impact on politics and nation-building. Is the referendum about the constitution, or is it really about other issues? Are there particular circumstances when a referendum might be particularly valuable—and others when it is unnecessary, even counterproductive? In order to answer these and other pertinent questions, we look at the advantages and disadvantages that are commonly advanced about referendums.

Arguments in favor of referendum

People’s sovereignty and democracy; conformity with international norms—self- determination

The preamble of most constitutions says, “We the People give ourselves this constitution,” or something to that effect. Modern democratic theory and emerging international norms, such as self-determination, proclaim that the sovereignty of a nation is vested in the people. Since the constitution is the supreme law, a manifestation of national sovereignty, it is appropriate that the final word should rest with people.

People’s participation

Closely connected with the above point is the right of the people to participate in the constitution- making process. (See part 2.2.1.) Traditionally, the entire scope of people’s participation was the referendum, generally after the constitution was made in considerable secrecy, by a few men drawn from the upper classes. Today, as we know, people participate in many ways, but often they play a small role in decision-making—except when there is a referendum.

Check on constitution-makers

The final word is often a commentary on, or an assessment of, the results of preceding efforts. If the process has been participatory, people have a chance during the referendum to decide whether their views have been sufficiently taken into account. There are several examples of people rejecting the constitution: Albania [1998], Zimbabwe [2000], Kenya [2005]. Sometimes the rejection kills efforts at reform, but more often it leads to a better process, as in Albania and Kenya (although after a lapse of some years).

Accountability of constitution-makers

The referendum can be a mechanism of accountability. It provides an opportunity for wide- ranging debate, and if the sponsors of the draft, usually members of the government, lose, they are expected to resign. In practice this has not happened. In Kenya [2005] the president dismissed the “No” faction of the cabinet; in Zimbabwe the president intensified his oppression of the people; in Albania the government stayed on and rigged the next election. But it is likely that the regime loses some moral and political authority.

Incentives for compromise to ensure general support of all ethnic and other communities

It is possible that if the process includes a referendum, this leads to caution on part of constitution-makers involved in earlier stages of the process, making them more sensitive to views of the people and more inclined to resolve differences among themselves. It is possible that in South Africa [1996] the provision for a referendum if the constituent assembly was not able to agree (by a two-thirds vote) might have persuaded the National Party to make more concessions to the African National Congress than it might have done otherwise, and equally that the African National Congress might not have wanted the agreement with the National Party, negotiated over a long period of time, to collapse through extremist influence on the referendum. However, it does not seem that the Kenyan politicians, acting through the parliamentary select committee, were particularly concerned about the reaction of the people (even shortly before the 2010 referendum was due), but the committee of experts, realizing that the last word lay with the people, felt emboldened to restore some people-oriented provisions that had been removed by the committee.

Change after careful consideration

Insofar as the referendum provides another opportunity to reflect on the draft constitution, and involves people who might not previously have been engaged in the process, it may prevent hasty, ill-considered, or opportunistic alterations to the constitution.

People’s knowledge of constitutional matters

The referendum campaign is an intense period of concentration on political and constitutional issues, explanations of the draft constitution, and arguments about its pros and cons. This provides an incentive as well as a wonderful opportunity for the people to learn about constitutional values and institutions, and perhaps their own responsibilities as citizens.

Nation-building

Professor Suksi remarks that several recent referendums have taken place in countries in, or coming out of, conflict. For various reasons, he says, political or military leaders in these countries use referendums to secure the broadest possible legitimacy for a new constitutional arrangement and the greatest possible visibility for the constitutional solution. The referendum may, under such circumstances, be the final resort, either due to opportunism on the part of the leaders of the state to legitimize their position or because of an honest attempt to re-create public authority by a reference to the root of legitimacy, the people (Suksi 2008).

Legitimacy—people’s aspirations: Putting the matter beyond doubt

Underlying many of the above arguments is the legitimacy that is supposed to flow from people’s endorsement of the constitution. Words such as “ownership” and phrases such as “the commitment to defend the constitution” are used frequently. There is no doubt that people who have been given, and have taken, the opportunity to vote on the constitution will feel a greater stake than they would in one bestowed on them. The sponsors and supporters of the constitution often point to the enthusiasm of the people, emphasizing the significant majority for it, while its opponents feel hesitant to criticize it.

However, there is little empirical evidence that the euphoria or the hesitation lasts for long— unless the constitution delivers—or that people would take to the streets to defend the constitution. Thailand’s 1997 constitution resulting from a highly participatory process was overthrown easily enough. Even more striking was the lack of any popular resistance to the refusal of the Eritrean president to bring the 1995 constitution, which had been crafted with full public participation, into force. On the contrary, there is the risk that if the high expectations are not met soon, the support for the constitution will disappear. The next section discusses arguments against the referendum.

Arguments against referendum

A constitution is not a one-issue matter, but a complex set of values and institutions

A common worry about the referendum is that the voters will not understand the constitution or appreciate the significance of contentious issues. They may, indeed, reject the constitution on the basis of one or two issues that are peripheral to it. It is safe to say that in few cases have the vast majority of the people understood the real significance of the constitution, or the compromises that have gone into creating it.

Danger of misleading campaigns

Most referendum campaigns are dominated, if not hijacked, by politicians. Experience shows that many of them do not understand the constitution, and in many cases have not even read it. Ignoring the central objectives and themes of the constitution, they blow a minor provision out of all proportion, particularly if it appeals to the emotions, and they make the referendum a one- issue matter. They are not above deliberately misleading the people; the campaign becomes a tissue of lies—the antithesis of deliberative democracy. If the politicians are divided about the constitution, their supporters will follow them and make little effort to understand the true issues.

Voting for the wrong reasons

The party politicization of the campaign can infect the people, so that the motives for their votes have little to do with the content of the constitution (or even misunderstandings about it). There are, as it were, purely political party considerations that can delegitimize the sponsors, usually the government. In countries where parties are unstable and fluid, the considerations are ethnic. The 2005 and 2010 referendums in Kenya were marked by extreme appeals to ethnicity; their effectiveness was reflected in the voting patterns. The general feeling was that the campaigns were really about the 2007 and 2012 general elections. The referendums became politics by another name.

Dangers of manipulation and intimidation, and seeking spurious legitimacy

In many countries, especially in developing areas, the referendum campaigns and voting have many of the hallmarks of elections—use of official resources for campaigns; intimidation and the use of the militia; bribery and other forms of electoral corruption, including the stuffing of ballot boxes. In Rwanda the voters were deliberately given only two weeks for debate, attempts at independent assessment were suppressed, and the fear of another genocide was evoked by the government if the constitution were rejected. The situation was worse in Sudan, where the draft, as presented by the commission, was altered by the president and then submitted to a highly manipulated and controlled referendum. Recently a similar charade was enacted by the military authorities in Myanmar (formerly Burma). In none of these states was the process open or participatory; instead it was marked by censorship and coercion.

Deeply divisive or polarizing effect of referendum in multiethnic states

The points above suggest that, far from the referendum bringing people around a constitution and promoting national unity, it can be deeply divisive. The situation after the referendum can become worse than before. (This is illustrated by the experiences in Cyprus, Iraq, and Kenya.) These experiences also showed the majoritarian bias of the referendum.

A better form of public participation is at earlier stages of the process: People as decision-makers

If an objective is the participation of the people, it is more effective to bring the people into the process at earlier stages, when there are discussions about the reform agenda and preliminary decisions on the constitution are being made. This will engage them more deeply and make them the real decision-makers.

Referendum can be used to defeat the results of a fair and participatory process

The referendum is sometimes used to defeat the results of a fair and participatory process. In Sudan [1998], Zimbabwe [2000], and Kenya [2005], key government officials not in agreement with the drafts produced through predetermined procedures put to a referendum their own versions of the draft. Although in some cases the doctored drafts were rejected, the original drafts were not enacted. In Kenya it took several years, and another lengthy process, to install the original draft, and even then it was not promulgated in its entirety.

In multiethnic states, the better solution is to negotiate in good faith

In multiethnic states, the strongest argument against a referendum is that a laboriously and carefully negotiated settlement between different communities can come unstuck. These settlements are almost always controversial, yet they are the only basis on which agreement is possible. But disgruntled members of a community, particularly of the majority community, can use the referendum campaign to mobilize opposition with the use of racist propaganda. In a country with a troubled ethnic history, such appeals are likely to succeed. The result is deep resentment in one or more communities and the general worsening of ethnic relations. Equally likely is that some leaders would not even agree to a settlement, fearing that they would be accused by their communities of selling out during the referendum campaigns. The danger of referendum politics sharpening ethnic divisions is real. The recent Canadian experience in getting a new constitutional order shows the incompatibility of a negotiated compromise with the outcome of referendum.

Legitimacy comes from the fairness and effectiveness of the constitution

Some of the most successful constitutions have not had the benefit of a referendum, such as those of Canada, Germany, Hungary, India, Japan, Mauritius, and South Africa, while many constitutions endorsed by referendum have performed poorly or been replaced (e.g., those in Eritrea, Sudan, and Thailand). Fairness depends on the context; in the case of a multiethnic state it means that there is respect for all communities, and individual as well as community rights are protected within an overarching national identity. Effectiveness means that the status of the constitution as supreme law is honored and therefore the rule of law prevails.

Importance of the question

It is well understood that, deliberately or by carelessness, how the question is put can affect the result. When Australians were asked about the abolition of the monarchy, it is probable that a majority favored this step, but the question as framed faced them with a choice about how to replace the British monarch as head of state. This issue divided the republican vote. In Kenya [2010] the question “Do you approve of the proposed constitution?” was arguably less clear than one showing that the choice was between the existing constitution and the proposed one.

The United Kingdom electoral commission criticized a referendum on powers for the Welsh assembly for being ambiguous and using phrases (such as “devolved powers”) that people did not understand.

Comment on the debate

The arguments for and against the referendum show that while in theory it is democratic and basic to the sovereignty of the people, it poses serious practical problems. It may well be necessary in some contexts and unwise in others. It would be useful to make a careful analysis of the desired or expected objectives of the referendum before embarking on it, and to structure it accordingly. Meanwhile there are some obvious procedural improvements that should be instituted, particularly to make it fairer, more effective, and more educational.

Referendum reforms

One complaint about the referendum is that it gives limited choice, expressed as “Yes” or “No.” Is it possible to offer more choices? Options that may be considered are:

choices on a series of contentious issues (for example on abortion or on the electoral system) before the draft is finalized; or

choices between two drafts (for example, one based on the parliamentary cabinet system and the other on the presidential).

The draft constitution should be published well before the referendum date so that there is sufficient time for proper dissemination and discussion.

The question on which the voters have to decide should be clearly stated, and announced well in advance; testing questions ahead of time to see whether they are understood would be wise.

To avoid the hijacking of the campaign by politicians, an independent commission of eminent and respected citizens should be established to assist with dissemination of the draft, and the organization and funding of campaign activities, including:

promoting understanding of the purposes and procedures of the referendum, in cooperation with the electoral commission and other relevant bodies;

facilitating town hall-type meetings and media programs jointly with “Yes” and “No” teams to promote fair and open debate;

preparation, publication, and dissemination of materials to facilitate understanding of the draft, including for people with reading impairments, and in different languages where appropriate; and

engaging with monitors overseeing the campaigns and the voting.

A regulatory system for campaigns and for the conduct of voting, with a code binding on all political parties and other groups active in the campaign, should be established to ensure a fair campaign, including:

no hate speech;

no bribery of voters;

no deliberate misleading of voters and others about the draft;

no intimidation or use of force against those with opposing views or voters; and

no use of government resources other than through the referendum commission.

To make the referendum meaningful, the design of the constitution-making process should provide for the participation of the people in earlier stages of the process so that they become aware of the issues and the debates and are able to make an informed choice at the referendum.